dismissed EB-1A Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 7906341 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 19, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an embedded software engineer working in the area of industrial automation and 
control, seeks classification as an alien of extraordinary ability . See Immigration and Nationality Act (the 
Act) section 203(b)(l)(A), 8 U.S.C . § 1153(b)(l)(A). This first preference classification makes 
immigrant visas available to those who can demonstrate their extraordinary ability through sustained 
national or international acclaim and whose achievements have been recognized in their field through 
extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidentiary requirements of at least three of the criteria listed 
at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation , 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
II. ANALYSIS 
The Petitioner is current! em lo ed as a senior ro · ect en ineer for~---------- a 
manufacturer of.__ __________ ..-------.---' hardware and software. He earned a 
master's degree in electrical engineering from~--~State University in 2007. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met one of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his participation as a judge of the work of others in his 
field. On appeal, the Petitioner asserts that he also meets three additional evidentiary criteria. After 
reviewing all of the evidence in the record, we find that he does not meet the initial evidentiary 
requirement of at least three criteria. 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The evidence establishes that the Petitioner served as a peer reviewer for the I I I Symposium in 2017, reviewing several papers that were submitted to t._h_e_c_o_n_£_e-re_n_c_e __ _. 
We therefore agree with the Director that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the _field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi) 
The Director found that while the evidence establishes that the Petitioner authored at least three 
scholarly articles, none were shown to have been published in a qualifying medium. However, in 
responding to the Director's request for evide
1
ce (IIFE), the Petitioner submitted evidence that his 
poster was published in the proceedings of the' World Congress on Alternatives & Animal Use 
in the Life Sciences." Upon review, we disagree with the Director and find that this evidence 
demonstrates that this scholarly article was published in a professional medium, thus satisfying the 
plain language of this criterion. 
2 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
In order to meet the requirements of this criterion, the Petitioner must demonstrate both that he played 
a leading or critical role, and that the organization or establishment for which that role was played is 
recognized as having a distinguished reputation. If a leading role, the evidence must establish that 
the Petitioner is or was a leader. A title, with appropriate matching duties, can help to establish if a 
role is or was, in fact, leading. If a critical role, the evidence must establish that the Petitioner has 
contributed in a way that is of significant importance to the outcome of the organization or 
establishment's activities. It is not the title of the alien's role, but rather the alien's performance in the 
role that determines whether the role is or was critical. 
In his decision regarding this criterion, the Director acknowledged the reference letters from the 
Petitioner's employer, as well as evidence that he is listed as an inventor on multiple patent 
applications, but found that this evidence did not establish that his role was leading or critical for the 
employer as a whole. On appeal, the Petitioner specifically refers to a letter from his employer's vice 
president as acknowledging his contributions and leading role to the company. That letter, submitted 
in response to the Director's RFE, acknowledges that the task of writing a reference letter was 
delegated to the Petitioner's supervisor, and does not itself expand upon his leading or critical role. 
The letter referenced in the vice president's letter was written by I I Engineering 
Manager atD I I writes that the Petitioner and his team "have spent the last five years 
developing a robust, high performance, and secure platform," and that "products driven by this 
platform were covered in 15 trade shows, 3 magazines, and 1000 customer evaluations." He also notes 
that the Petitioner then "led a second IO platform development effort" which received "a strngl 
positive response from the I l community around the world" in 2018. Further, 
I !mentions that the company's "next generation platforms have been widely promoted product 
lines." 
Other reference letters in the record farther explain the Petitioner's wo~k onlthese products. 1 For 
example,.__ ________ ~ a retired senior principal engineer fo describes innovative 
features of the protocols developed by the Petitioner, noting that they are protected under a U.S. patent 
and pending Chinese and European patents. He also describes the Petitioner's leadership in the 
development of a '.__ __________ __." noting that the end result was "a key contributor to 
time to market and risk strategies in new product development." 
The record also includes photographs of an 'I I A ward" plaque ~ the Petitioner in 2015 
for "contributions to the I J Protocol forl__Jbackplane," which is 
referred to inl k letter. In addition, copies of patent applications listing the Petitioner as 
an inventor were submitted, as well as two letters notifying him of modest cash awards related to his 
work on these patents. 
1 We have reviewed all of the submitted reference letters in their entirety, including those not specifically mentioned in 
this decision. 
3 
While this evidence establishes that the Petitioner led a team of unspecified size and composition at 
D, and that D has a distinguished reputation within thd I industry, it does not 
show that he acted as a leader for the overall organization, which the evidence indicates includes more 
than 22,000 employees. In addition, although he received recognition byD for his work and was 
important to the development of the I~atform products, the evidence does not establish that the 
Petitioner's contribution was critical to LJs overall success or of significant importance to its overall 
activities. Other than confirming the fact that he received the I I Award, the evidence does 
not provide additional information about it such as the number of such awards granted by D the 
scope of the award, or other contextual information to demonstrate the extent of this recognition within 
the company. Also, we note that the promotional information fromD shows that its products 
encompass multiple categories of software, hardware and devices, indicating that the Petitioner's work 
impacted a portion of those products. Furtherj !Global Product Manager for this product 
line, repeats much of the same language included in I Is letter regarding promotional 
activities surrounding its launch, but the record does not include evidence to put these activities into 
context or otherwise support the overall criticality of the products to~s activities. We therefore 
agree with the Director that this criterion has not been met. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
To satisfy the requirements of this criterion, the Petitioner must establish that his salary, or total 
remuneration, is high or significantly high, respectively, based on a comparison with others in his field 
in similar positions and geographic locations. 2 Although the Petitioner does not specifically assert 
that he meets this criterion on appeal, we note that the Director's decision did not address the 
Petitioner's claim to have a high salary in his RFE response. We will therefore consider the evidence 
relating to this criterion here. 
The Petitioner submitted a printout, dated April 16, 2019, from what appears to be a third-party payroll 
website that shows a summary of his employer's "total annual investment." This includes a line item 
labelled "compensation," which includes a figure of $122,864, as well as a total compensation, 
including "health & welfare" and "retirement," of $143,737. However, the printout also includes a 
disclaimer stating that the third party "does not give any warranty or other assurance as to the content 
of the material appearing on the site, its accuracy, completeness, timeliness, or fitness for any 
particular purpose." 
The Petitioner then compares this total compensation figure to the U.S. Department of Labor data for 
Electrical Engineers in thel I Ohio area at the Level 4, or folly competent, wage, stating that 
it exceeds that wage by 150%. We first note that the Occupational Employment Statistics (OES) data 
obtained from the FLCDatacenter.com website, from which the Petitioner obtained this data, does not 
include bonuses or benefits. 3 Therefore, the appropriate figure for means of comparison to this wage 
2 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14. at 11 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html, noting that it is the petitioner's burden to provide 
geographical and position-appropriate evidence to establish that a salary is relatively high. 
3 See the OES FAQ page at https://www.bls.gov/oes/oes _ ques.htm, accessed on March 18, 2020. 
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is the "compensation" figure of $122,864. Second, the Petitioner describes his position on Form I-
140 as "embedded software engineer," which is consistent with the description of his work elsewhere 
in the record. While the relevant wage in 2019 for electrical engineers was $99,570, the wage for 
software developers, systems software (SOC code 15-1133) was $105,248. 4 Although the evidence 
indicates that the Petitioner's salary is higher than both of these median wages, it does not sufficiently 
establish that it is high, as opposed to just above average, in comparison to others in the field. 
Accordingly, this criterion has not been met. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields. USCIS has long held that even athletes performing at the major league level 
do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 
954 (Assoc. Comm'r 1994). Here, the Petitioner has not shown that the significance and recognition 
of his work is indicative of the required sustained national or international acclaim or that it is 
consistent with a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 
101-723, 59 (Sept. 19, 1990); see also section 203(b)(l)(A) of the Act. Moreover, the record does not 
otherwise demonstrate that he is one of the small percentage who has risen to the very top of the field 
of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
4 Obtained from www.flcdatacenter.com, accessed on March 18, 2020. 
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